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August 29, 2014 by Robert Franklin, Esq.

My wife and I live in a small Texas town. Because much that gets done in our town does so because volunteers do it, I volunteer one day a week at the local library. There I meet people I probably otherwise wouldn’t.

Several years ago, three boys walked in shepherded by their mother close behind. I’d never set eyes on any of them before, but I immediately noticed how neat, tidy, respectful and generally well-behaved the boys were. I recall that they were about 11, 8 and 5 at the time. Mother and sons worked quietly and intensely at the computers and various books of history, mathematics, English, etc. Soon enough, the mother and I struck up a conversation and I learned that she home-schooled her kids. She didn’t trust the public schools to inculcate the type of values in her sons that she expected them to have, so she took matters into her own hands.

Fast forward six years. My wife and I have met, quite by accident, another family that has three boys of about the same age as the ones I met at the library. The first minute I met them and said “Hello” to the children, I immediately concluded they were being home-schooled. These three are more than just well-mannered; they’re intelligent, well-spoken, interested and interesting. The middle one plays the piano, the oldest plans to get his falconry license soon. The youngest, who is four, tries his best to carry on an adult conversation with admittedly not much success. But how can you not love a child who, on discovering a book about amphibians and reptiles, immediately gets down on the floor to share the photos with the family dog, who, truth to tell, seemed unimpressed. These kids are 11, 9 and 4 and are a complete pleasure to be around. And sure enough, they’re being home-schooled.

Those two examples of course mean little about home-schooling as a way to educate kids. The quality of the education kids receive depends almost entirely on the quality of the teacher delivering same. If the teacher is effective and cares about the children, then the effects will likely be positive, but clearly there’s no certainty that a parent is better at the job than teacher.

Still, I thought about my friends and their home-schooled kids when I read this by the estimable Eugene Volokh (Washington Post, 8/18/14). Volokh teaches law at UCLA law school and writes the blog The Volokh Conspiracy, which is well worth a read.

The issue he’s dealing with is one we haven’t encountered in family courts much, but it falls squarely onto the continuum of issues that come under the general heading “Family Courts Micromanaging Parent’s Decision-making,” or words to that effect. It seems that, much like with child protective agencies, once a court gets a family in its sights, it can’t seem to resist putting every imaginable detail of their lives under its microscope. Judges often seem to think that wearing a black robe and sitting higher than everyone else in the courtroom imbues them with wisdom the rest of us lack.

Do those judges know the kids whose lives they govern? No, they meet them rarely if at all and only for the briefest of times and in the most artificial of circumstances. Will they live every day with the decisions they make about the parents and kids? Again, no. They’ll pronounce their ruling, bring the gavel down and move on to the next case, likely never to know whether the orders they issued were good or bad, right or wrong, constructive or not. Parents have deep-seated relationships with their kids; judges don’t. Parenting is for life; judging often as not is a one-shot deal.

Volokh’s topic is how parents who home-school their kids fare in child custody cases. Now, for me, it’s hard to countenance a court’s assuming the authority to decide whether a child is schooled at home or at a public or private school. I think that if there’s a problem with the child’s performance in school that has something to do with the nature of the school, then the court can issue orders following appropriate investigation. So if the child is uniquely unsuited for, say, military school, private school, public school, religious school, etc. and he/she seems to be suffering some sort of serious detriment because of it, then perhaps judicial intervention may be warranted.

But a judge’s dislike for a particular school, religion, etc. should form no basis for intervention in parental decision-making. Put simply, courts have no business micromanaging parental decisions as long as they’re not clearly contrary to the child’s well-being. Again, judges aren’t a permanent presence in a child’s life and likely have little idea of how their rulings affect most of the families they see in court. But whatever the case, judges should never take it upon themselves to act as supervisory parents, second-guessing any parental decisions they choose. Our traditional opposition to “judicial activism” must extend to family courts, perhaps especially those.

Some cases, though, ask whether a judge may prefer one parent over another because the preferred parent would send the child to a school (or perhaps even specifically to a public school), and the other parent would instead home-school them. I’ve blogged about this before; some cases have endorsed this non-home-school preference (see these cases from North Carolina and New Hampshire), one has expressly rejected it (this Pennsylvania case), and one is complicated (see the opinions in this Michigan case). I’ve just come across one more rejecting the non-home-school preference, Rocha v. Rocha (Kan. Ct. App. Aug. 8, 2014):

The judge in Rocha gave primary custody to the father in part because he wouldn’t home-school the kids whom the judge opined couldn’t be socialized properly if they didn’t attend school with other children. Where he got that idea, he didn’t let on. Home-schooled kids get socialized by interacting with each other, their friends, neighbors, in church, etc. The six kids I see frequently who’ve been home-schooled are a lot better socialized than 90% of the children their age I know. A LOT better.

So it’s good to see that the appellate court rejected the trial court’s reasoning.

The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. We do not concur with the court’s statements as evident by the authority cited in the amicus brief [of the Home School Legal Defense Association] and also the facts of this case.

Volokh goes on to say much what I did.

I should note that, if there is specific evidence that home-schooling is against a particular child’s best interests — for instance, the home-schooling is causing huge tensions between that parent and the child, or a child who had done great in school before is now doing poorly on tests while he is being home-schooled and there is reason to think that homeschooling is the cause — likely all courts would consider that as a factor against the homeschooling parent. (Conversely, if a child is thriving while being home-schooled by one parent, and the other parent seeks custody and would stop the home-schooling, that would likely be a factor in favor of the home-schooling parent.) The question here is whether, in the absence of evidence of specific harm or benefit from home-schooling, family court judges can rely on their own general estimation of whether home-schooling is usually better or worse for children than other schooling.

I’d go a step further. I’d say that, absent concrete evidence of harm to a child, parents should be left free — by judges, by CPS, by nosy neighbors, etc. — to raise their kids as they see fit. Doing otherwise is not only an unwarranted extension of governmental power into family life, it’s probably not as good a decision as the parents would have made.


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#parenting, #homeschooling, #EugeneVolokh

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